| Matter of Milton v Tormey-Milton |
| 2015 NY Slip Op 08735 [133 AD3d 857] |
| November 25, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Geoffrey Milton,Appellant, v Joan Tormey-Milton, Respondent. |
Geoffrey Milton, Sag Harbor, N.Y., appellant pro se.
Thomas Weiss & Associates, P.C., Garden City, N.Y. (Lindsay Boorman ofcounsel), for respondent.
Appeal from an order of the Family Court, Nassau County (Robin M. Kent, J.), datedSeptember 29, 2014. The order denied the father's objections to a prior order of that court(Adam E. Small, S.M.) dated April 7, 2014, which, without a hearing, granted themother's motion to dismiss his petition for a downward modification of his child supportobligation.
Ordered that the order dated September 29, 2014, is reversed, on the law, with costs,the father's objections to the order dated April 7, 2014, are granted, the order dated April7, 2014, is vacated, and the matter is remitted to the Family Court, Nassau County, forfurther proceedings on the father's modification petition in accordance herewith.
The parties entered into a postjudgment stipulation of settlement in June 2010, whichprovided that the father would pay child support in a specified amount each month. Thefather subsequently petitioned for a downward modification of his child supportobligation. In an order dated April 7, 2014, the Support Magistrate, without a hearing,granted the mother's motion to dismiss the father's petition for a downward modificationof his child support obligation on the ground that it failed to state a cause of action. In theorder appealed from, the Family Court denied the father's objections to the order datedApril 7, 2014. We reverse.
The parties' stipulation of settlement was executed prior to the effective date of the2010 amendments to Family Court Act § 451 (see L 2010, ch 182,§ 13). Therefore, to establish his entitlement to a downward modification ofhis child support obligation, the father had the burden of showing a substantial andunanticipated change in circumstances since the time he agreed to the support amount(see Gribbin v Gribbin, 126AD3d 938 [2015]; Matterof Gadalinska v Ahmed, 120 AD3d 1232, 1232-1234 [2014]; Matter of Dimaio v Dimaio,111 AD3d 933, 933-934 [2013]; former Family Ct Act § 451 [2][a]).
When determining whether a change in circumstances warranting a modification hasoccurred, courts must consider several factors, including "a loss of income or assets by aparent or a substantial improvement in the financial condition of a parent, and the currentand prior lifestyles of the children" (Shedd v Shedd, 277 AD2d 917, 918 [2000];see Matter of Love v Love, 303 AD2d 756 [2003]). A determination of childsupport must include an evaluation of the means and responsibilities of both parents andthe needs and best interests of the child (see Matter of Chariff v Carl, 191 AD2d795, 796 [1993]). A parent's inability to secure new work after losing employment mayconstitute a [*2]substantial and unanticipated change incircumstances where the award of support was premised upon a particular amount ofincome (see Matter of Silver vReiss, 74 AD3d 1441 [2010]; Matter of Perry v Pica, 22 AD3d 903, 904 [2005];Matter of Mancini v Borowicz, 271 AD2d 789, 791 [2000]).
Contrary to the Support Magistrate's conclusion, the father's petition was sufficient tostate a cause of action for a downward modification of his child support obligation. Thefather alleged in his petition that his income had decreased since the parties entered intothe stipulation of settlement, and alleged in his financial disclosure affidavit that his twinchildren were going away to college and that their tuition, room, and board would bepaid out of a Uniform Transfers to Minors Act (EPTL 7-6.1—7-6.26) accountfunded by him (see Matter of Gadalinska v Ahmed, 120 AD3d at 1232-1234; Matter of Silver v Reiss, 74AD3d 1441 [2010]; Matter of Davis v Vaught, 82 AD2d 805, 805-806[1981]; cf. Matter of Corbisierov Corbisiero, 112 AD3d 625, 626 [2013]). Furthermore, although the father wasemployed when the amount was agreed upon, the child support amount was based uponhis imputed income and his expectation that he would soon secure more lucrativeemployment. That employment opportunity did not arise, and the father alleged that hewas only able to meet his support obligations by depleting his financial resources. Sincethe allegations in the father's petition, if substantiated, were sufficient to constitute asubstantial and unanticipated change in circumstances warranting a modification of hischild support obligation, the Support Magistrate should not have granted the mother'smotion to dismiss his petition for failure to state a cause of action (see Matter ofGadalinska v Ahmed, 120 AD3d at 1232-1234; Matter of Green v Silver, 96 AD3d 843, 845 [2012]; cf. Reese v Reese, 112 AD3d602 [2013]).
Accordingly, we remit the matter to the Family Court, Nassau County, for furtherproceedings on the father's modification petition, including a hearing and considerationof the evidence submitted by the father in support of his allegations. Mastro, J.P.,Dickerson, Miller and Maltese, JJ., concur.